Julius Gatoto Maina v Johnson Gaitho Wanjohi, Jackson Maina Riithia, Thika Land Registrar & Attorney General [2021] KEELC 357 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC CASE NO. 502 OF 2017

(FORMERLY NAIROBI ELC 1515 OF 2014)

JULIUS GATOTO MAINA.......................................................PLAINTIFF

VERSUS

JOHNSON GAITHO WANJOHI.........................................1ST DEFENDANT

JACKSON MAINA RIITHIA…..........................................2ND DEFENDANT

THIKA LAND REGISTRAR...............................................3RD DEFENDANT

HON ATTORNEY GENERAL............................................4TH DEFENDANT

JUDGMENT

The Plaintiff herein Julius Gatoto Mainafiled this suit against the Defendants vide an Amended Plaint dated 12th July 2019, and sought for orders that;

a. A Declaration  that the Plaintiff  is the lawful  registered proprietor  of all that parcel of land  known as  RUIRU KIU BLOCK 2(GITHUNGURI)/4584 and that the records  held by the 3rd defendant  reflective of the said status  are the true and correct records as to the proper  history and ownership of the land

b. A Permanent injunction order restraining  the 1st  Defendant whether by  himself or through  his servants , workmen or agents from  doing any of the following  acts  that is to say entering into , taking or assuming  possession , trespassing  and /or  in any other manner  whatsoever interfering  with the  Plaintiffs   peaceful  occupation , possession  and enjoyment of all that parcel  of land known  as RUIRU KIU  BLOCK 2(GITHUNGURI)4584.

c. Damages as against  the 1st Defendant for Trespass to land

d. Costs  and interest of Court rates

e. Any other relief that the Honourable Court may deem fit to grant.

In his statement of Claim, the Plaintiff, averred that he is the registered owner in occupation and possession of   the suit property   having bought it from the 2nd Defendant, who was the registered owner. That he acquired the suit  property for valuable  consideration from the 2nd Defendant  vide a sale agreement dated 23rd February 2010,and the same was transferred  to him upon execution of all documents and he was then issued with a Title Deed. That the 2nd Defendant was a shareholder of the  Githunguri Constituency Ranching Company Limitedand sometime in   November 2014, the Plaintiff was informed  that the 1st Defendant had  trespassed on the suit property and had started  to fence ready for development . That the 1st Defendant’s actions amount to trespass to land  as he had no lawful justification   to enter into, fence, develop  or take possession of the suit property .

The Plaintiff particularized trespass as, unlawfully  moving into the suit property , laying baseless claims of ownership, unsupported by any evidence and interrupting the peaceful occupation  and possession  of the premises  by the Plaintiff. The Plaintiff  further averred that his attempts to resolve the disputes using the local administration has been in vain as the 1st Defendant was not keen on producing  any documents of ownership.

The suit was contested and the 1st Defendant filed  his Defence and Counter Claim dated  13th October 2015,  and denied all the allegations made in the Plaint . It was the 1st Defendant’s contention that  if  JacksonnMaina Riithia  is the registered owner of  the suit property, any transfer or registration was fraudulently done , illegal and cannot give any valid title. That there are no  records pertaining  to Jackson Maina Riithia  at Githunguri Constituency Ranching Company Limited . That he purchased the land in 2010and took possession, planted a live  fence and commenced construction  on the suit land which construction is legal as he is the valid owner of the suit property.

In his Counter Claim, the  1st Defendant,  averred that on 4th July 2012,he entered into a sale agreement with  John Gichuki Thairu  for the sale of the suit property  at a consideration of Kshs. 680,000/= . Further that the Vendor had bought the suit property on 3rd  June 2011  from the previous owner  personal and legal representative  one Mary  Njeri Kamau who is the Administrator of the  Estate of  James Kamau Ndai . That the Deceased has all  documents including  the original ballot, receipts  and share certificate  duly issued by Githunguri Constituency Ranching Company Limitedwhich documents were passed to the 1st Defendant . The 1st Defendant therefore  sought for orders that;

a. A Declaration that the Plaintiff  registration  or his agents  registration  Jackson  Maina Riithia  in land parcel  Ruiru Kiu Block 2(Githunguri) 4584 is fraudulent , illegal and  unjust

b. A cancellation , revocation  or annulment  of any  title  held  by the Plaintiff  whether  by himself  Jackson Maina Riithia in land  parcel  Ruiru Kiu Block 2 (Githunguri) 4584 and the  same  to be registered in the names of the 1st  Defendant  Johnson Gaitho Wanjohi.

c.  Costs  and interest of the suit

The 2nd Defendant filed his Defence dated 24th February 2020,  and admitted having entered into  a Contract  dated 23rd February 2010, with the Plaintiff for the sale of the suit property as he was the owner of the same. That he acquired the suit property through Githunguri  Constituency Ranching Company  Limited and his ownership  of the suit property was verifiable through  his Certificate of ownership  No. B8127, and his ownership goes way back to  the year 1998, as evidenced by the Certificate and issued receipts of payment of  registration and  Survey Fees dated 6th April 1998. That he continued his uninterrupted occupation until a Title Deed was issued in his name on 23rd August 2004,and then he sold it in 2010 to the Plaintiff and handed over possession. That no party laid claim of ownership to the suit property when he had possession.

The 3rd & 4th Defendants filed their statement of Defence dated  13th November 2019,  and denied all the allegations made in the Plaint. They admitted the contents of paragraphs 3 & 4 in so far as the Plaintiff is the registered owner of the suit property  and averred that the suit as drawn does not disclose  any reasonable cause of action  against them.

The parties called their witnesses during the interparties hearing. The evidence adduced as follows;-

PLAINTIFF’S CASE

PW1 Julius Gatoto Maina adopted  his witness  statement dated  4th December 2014,  as  part  of his  evidence . He testified that the suit property is  Ruiru/Kiu Block  2/Githunguri /4584 . That he bought  the said suit property in  2014, and the land belonged to  Jackson  Maina Riithia. That he purchased the suit property  on 23rd February 2010,  for Kshs. 150,000/= and he paid cash. He further testified that he conducted a search   dated 18th February 2010,and they went to the Land Control Board at Ruiru and he was given a consent. He then transferred the suit property to his name and he was issued with a title deed dated 26th August 2015, which is in his name. Further that  Johnson Gaitho  invaded the suit property in  2014, without his permission  and though  he had issued him with a Notice  to vacate, he has continued to  build  despite the existence of a Court Order . That it is the 2nd Defendant who sold the suit property to him and he has no claim against him as  the Land Registrar said the land was his. He produced his list of documents as Exhibits 1 to 7  and the Supplementary List of documents as Exhibit 8 and urged the Court to order the  1st Defendant to move out of the suit property.

That he bought   the suit property from Jackson Maina  Riithia, who bought  it from  Githunguri Constituency Ranching Company  Limited  and he had ballot No. 4 . That he made payments and produced the  receipts as Exhibits in Court  and one for survey in 1998, That the records from Githunguri  Constituency Ranching Company  Limited, shows that  the suit property belonged to  Jackson Maina. That the land  is 0. 052ha . That Jackson Maina was  No. 8127  and that he had seen a Clearance Certificate from Githunguri Ranching Company Limited. He further testified that Jackson’s Rithiia’s  title  deed  is dated 23rd August 2004,  and his title deed was issued in the year 2015. It was his further testimony that  he had sued the 3rd &  4th Defendants, but he had no claim against them. That as he bought the suit property when it was in the name of Jackson  Maina Riithia and therefore he had no reason  to go to Githunguri   Constituency Company Limited.

DEFENCE CASE

2ND DEFENDANT’S  CASE

DW1 Jackson Maina Riithia  adopted his witness statement as his evidence in Court . He  produced his list of documents as Exhibits 1(a) to (f) . That he owned the suit property after he bought it from Githunguri   Constituency Ranching Company,when the Company  advertised the sale. That he once was staying in Ruiru and working as a hawker. He purchased  shares and paid  Kshs.45,000/= and he was given a share certificate  No. 8127,  that was issued on 10th  April 1998, in his name . That when he got the land, he  took possession immediately  by fencing . That he cultivated the land, since 2010 . Further that  his title deed was issue on  23rd August 2004,   and there was no objection.

Further that  he entered into a Sale agreement  with Julius  Gatoto Maina,the Plaintiff herein  and he has not been charged with any offence  and that he handed the  land to Julius  Gatoto Immediately he was paid the purchase  price. It was his further testimony that  he obtained the title deed  after the Director of Githunguri  Ranching Company had given a go ahead to the Thika Lands Office . That he bought the land for Kshs. 45,000/=  and he was not issued with any sale agreement, but he was given a share certificate. Further, that he bought the suit property  from Director  Wainaina Kihoro . That the receipt issued in  the name of Jackson  Maina Riithia  does not show the Share Certificate number  and that he had no clearance certificate from Githunguri Constituency Ranching Company Limited . He further testified that he balloted and got the share certificate, and he was in the land since 2010 and no one claimed the land.

1st DEFENDANT’S CASE

DW2 Johnson Gaitho Wanjohi  adopted his witness statement dated  13th October 2015,  as his evidence in Court. He further produced his list of documents filed on 13th October 2015 as Exhibits 1 to 9  and  further list of documents as Exhibits  10 to 12. It was his evidence that he bought the suit property from John Gichuki Thairu for Kshs.680,000/=. That the vendor did not have documents, but had a share certificate, ballot No. 4 dated 18th April 1998. That John Gichukihad bought the suit property from Kamau Ndai. Further as per the Githunguri Constituency Ranching Company’s Register, the suit property belongs to Johnson Gaitho Wanjohi, and the Plaintiff is not in the register . He urged the Court to cancel the title deed held by   Julius Gatoto,the Plaintiff herein and have his name  registered in the title.

He further testified that he had  a Certificate of Confirmation  of grant  dated 26th July 2008, that shows John Kamau Ndai is Deceased  and that the same was given  to Mary Njeri Kamau,  who sold the land. Further that the suit property is not in the confirmation of grant. He further testified that  the Vendor took  him to where the land was  and that John Gichuki  took him to  Githunguri Constituency Ranching Company Limited, and showed him the register  where he confirmed the land was his  as per the register in 2012.

That  the vendor showed him ballot No. 4  and he paid in cash  and he paid in instalment  and he  did not withdraw the money from the bank. That  he got the share certificate  from Githunguri Company Limited and its shows that he owns the suit property . That John Gichuki did not give him his share Certificate . That the Letter from Githunguri Constituency Ranching Company, does not  talk about allocation of land to  Kamau Ndai  and ballot No. 4 is  in the name of  John Gihuki Thairu  and then Johnson  Gaitho Wanjohi .Further that he entered into the suit property in 2015though he fenced in 2014,  and he has built a residential home. That in his Defence, he averred that he had taken possession in 2010.  Further that he took possession in 2013 . That his share certificate is dated  10th May 2013,  and does not show the description of the  suit property, and hence there is no connection between the  share certificate and  the suit land. That  John Gichuki bought  the land  from Mary  Njeri Kamau .

DW3  John Maina  Mburu testified that he is the Chairman  of Githunguri Constituency  Ranching Company Limitedand adopted his witness statement dated 19th  November 2019,  as his evidence. That as per the records held by their office  land parcel  No. 4584,  is held by  John Gichuki  Thairu as ballot No. 4 . That the share certificate is No. 2146. That he transferred   the property on 10th May 2013  to Johnson Gaitho Wanjohi  and  that Johnson Maina Riithia was not allocated the said land  as there was no other ballot in his name . That he did not have any records of transfer to  Jackson Maina and there  was no clearance Certificate . That for one to acquire a title deed, it is a must that they acquire a Clearance Certificate . That Directors of  Githunguri  Constituency Company Limited allocate the land, but they did  not sell the suit property and the Company does  not have plots for sale.

It was his further testimony  that he has been the Chairman of Githunguri Constituency Company  Limited since 12th September 2009, and that was the  records that he found in the office. That he had ballot No. 4 and receipts in relation to the suit property . That there are other files where they keep documents  surrendered during the transfers . That he  did not know  James Kamau Ndai personally but only through Company documents . That he found John Gichuki  Thairuwas allocated the land on 18th April 1998  and ballot No 4 was a bonus plot for  holder of B2146 and John Gichukiwas a beneficiary of that  share Certificate . Further that the original ballot was held by John Gichuki  Thairu  and the share Certificate is for  Kamau Ndai, whose name is not in the register . That the suit property is not in the schedule of assets in the  Confirmation of grant  of  James Kamau  Ndai. That the suit property was transferred to  Johnson Gaitho Wanjohi  on 10th May 2013 , and he gained possession on 11th May 2013. Further that  there is a sale agreement  between  John Gichuki  Thairu  and Johnson  Gaitho Wanjohi  dated 4th July 2012, but in2012,  the suit property had not been registered and they had no idea. That they have no control over land already registered in the lands office  and they are only consulted on the first registration. That the ballot  card was necessary  for the sale of land and the area list  translate the ballot  number to land parcels . Further that no title can be issued without a clearance certificate  from the Company,  unless it is acquired fraudulently . That the Clearance certificate is issued to members, and the Company then  keep a copy  and there was none issued  to Jackson  Maina Riithia .

Further that Certificates are serialized  and he would have been able to pull out  a copy of the share certificate No. 8127. That he had no records of how the plot moved from Kamau Ndai  and to where it moved to. That the land was initially allocated to Kamau Ndai . Further that no complaint on land grabbing had been filed in Court . That certificate No.8127 did not emanate from their offices  as it was issued on 10th April 1998,  and the particular plot was issued on 18th April 1998,and hence the plot did not exist then.

It  was his testimony  that  James Kamau  Ndai, had  three portions  residential Plot  No. 204 -1973, ¼ acre issued  in 1985 and N4 issued on 18th April 1998, and there is a Clearance letter  written by  Mary Njeri Kamau . That there  is a receipt  No. 377 of 6th April 1998,  and on  top,  it is indicated  Share Certificate . That ballot No.3451 is for 1 ¼ acre allocated to Kamau Ndai  and the land was sold to  Gichukiby the first allotee. That Clearance Certificate are issued  to the members  after  clearing the payment  and without clearance certificate, it is  an indication that work  was not done in their offices.

After the evidence, the   Court directed the parties  to file written submissions  and in compliance with the said  directives, the  Plaintiff, and  the 1st & 2nd Defendants filed their respective submission which the Court has carefully read and considered . The Court has also read and considered the  Pleadings by the parties, the  evidence adduced and the relevant provisions of law and renders itself as follows;

It is evident that both the Plaintiff and the  1st Defendant are laying claim to the suit property. Further, it is evident that the Plaintiff is the registered owner of the suit property having been registered as such  on 26th August 2015, as per the title deed produced in evidence. It is the Plaintiff’s contention that he bought the suit property from the 2nd Defendant   herein(Jackson Maina Riithia) who was the registered owner.  Further as per his evidence adduced in Court, the  2nd Defendant contends that  he was the original allotee  of the suit property having been allotted the same upon purchase from Githunguri Constituency Ranching Company  Limited. That he paid for the same and was issued with a receipt for the survey and transfer and he was further issued with a share Certificate which documents he produced in Court.

The 1st Defendant has however denied the allegations by the Plaintiff and the  2nd Defendant that the suit property lawfully belongs to the Plaintiff.  The 1st  Defendant in his pleadings and vide the evidence adduced in his favour in Court contends that the suit property was initially allocated to James Kamau  Ndai,  who through his personal representative  sold the same to  John Gichuki Thairu,  who in turn sold the same to him. He therefore contends  that he is the  lawfull registered owner of the suit property and being in possession  urged the Court to    cancel the certificate of title held by the  Plaintiff, as the same was fraudulently acquired . DW3 the Chairman  of  Githunguri Constituency Ranching Company  Limited  gave evidence and produced as exhibit a letter from the  said Company  that indicated that the documents held by the  Plaintiff are not genuine and that the suit property emanated from  ballot No 4 which was originally balloted by  John  Gichuki Thairu.

Therefore, what is not in doubt and has been agreed upon by the parties is that the suit property initially belonged to Githunguri Constituency Ranching Company. However, the point of departure is who was actually allocated the said suit property. Is it Jackson Maina Riithia or John Gichuki Thairu?

It is trite that he who alleges must prove  and therefore the parties must each  prove the  allegations set forth in their pleadings. Section 26 of  the  Land registration Act provides that  a person who  holds a title to land is prima facilely  the absolute and indefeasible owner of the  said property. However, if the same has been challenged, then the said proprietor must be able to show the process through which he/she acquired the said property and the   process ought to be  on that  which will show the root of title,  without  pausing  any   queries and or leaving any gaps. See the case of

Hubert L. Martin & 2 Others …Vs… Margaret J. Kamar & 5 Others[2016] eKLRwhere the  Court held that;

“31. A court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It follows that the title that is to be  upheld is that which conformed to procedure and can properly trace its root without a break in the chain. The parties to such litigation must always bear in mind that their title is under scrutiny and they need to demonstrate how they got their title starting with its root. No party should take it for granted that simply because they have a title deed or Certificate of Lease, then they have a right over the property. The other party also has a similar document and there is therefore no advantage in hinging one's case solely on the title document that they hold. Every party must show that their title has a good foundation and passed properly to the current title holder.  With the nature of case at hand, I will need to embark on investigating the chain of processes that gave rise to the two titles in issue as it is the only way I can determine which of the two titles should be upheld.”

With the above in mind, and having carefully considered the facts of this case and the evidence adduced, the Court finds the issuesfor determination are;

1. Who has satisfactorily shown  the root of their title between the Plaintiff and the 1st Defendant.

2. Whether the Plaintiff is entitled to the orders sought in his Amended Plaint

3. Whether the 1st Defendant is entitled to the orders sought in his  Counter Claim.

4. Who should bear the  cost of the suit.

1. Who has satisfactorily shown  the root of their title between the plaintiff and the 1st Defendant

As already   noted above, the Court in making a determination as to who is the rightful owner of the suit property, will  make an investigation of the root of the title  that is  held by the Plaintiff and further as the 1st Defendant.  Though the 1st Defendant is not registered as owner of the suit property but he is in occupation of the same and  he claims ownership of the same, it is incumbent upon him to show too the root of his title.

As already noted by the Court, the original owner of the  suit property  was Githunguri Constituency Ranching Company  Limited. Therefore, the said Company is best placed to give the Court a clear indication of who the owner of the  suit property is  as  the said Company ought to be vested  with the  records of the suit property.   It is the 1st Defendant’s evidence  that he bought the suit property  from John Gichuki Thairu, it is also the  1st Defendant’s evidence that the  said John Gichuki Thairu bought the suit brought from Mary Njeri Kamau, a personal representative of  James Kamau  Ndai, on 3rd June 2011.  To support their testimony , the 1st Defendant produced a Confirmation of Grant.  As per the evidence adduced in Court and the  Court having carefully gone through the Grant, the suit property was never listed as one of the properties that belonged to the  Deceased(James Kamau Ndai).Further the Court has perused the receipts and the Share Certificates  produced in evidence by the 1st Defendant, and while the Share Certificate produced in evidence by the 1st Defendant indicates that  he  is the owner of the suit property , there is nothing in evidence to show how the suit property moved to the John Gichuki Thairu since there is neither a receipt nor  a document  from Githunguri Constituency Ranching Company  Limited, in his name  save for his name  being in the register. Neither is there any documentation showing ownership of the suit property attributed to the  late James Kamau Ndai.

Further, to support his case, the 1st Defendant  called the Chairman  of  Githunguri Constituency Ranching Company Limited, as a witness In his evidence in Court , DW3  testified that the land initially belonged to the late James Kamau Ndai and was later sold  to John Gichuki Thairuand the  suit property was therefore transferred to the 1st Defendant .He further testified that the suit property was balloted for on 18th April 1998, and as per their records , the owner of the suit property was the 1st Defendant  and they do not have any records  that show that the Plaintiff was ever their member. He produced in evidence the letter dated  19th November 2019, from the Company. According to the said letter,  the suit property was generated  from 1/8 acres  held by ballot N4  which was  issued to John Gichuki Thairu. Further as per the letter, on paragraph 4, the balloting of the  suit property  bearing  N ballots was  done on 18th  April 1998,  and ballot No. N4  issued to  John Gichuki Thairu  the same day .

The Court then asks itself, if  according to the evidence adduced in Court by the 1st Defendant , the said John Gichuk Thairu  bought the suit property in 2011, and further in his evidence in Court  DW3  the Chairman claims that James Kamau  Ndai was the  original allotee of the suit  property , how then  can the same Company claim  that John Gichuki  Thiaru was  issued with ballot N4 on 18th April  1998?  From the  said contradictions, the Court is inclined to disregard the evidence produced by the Company as the same is contradictory and misleading to the Court. See the case of Easy Coach Limited & another ….Vs…Gideon Otieno Oulu & another [2021] eKLRwhere the  Court held that

“42.  These are diametrically opposed versions of the same accident by the same witness on two occasions both given under oath. They jar on the reasonable ear seeking a harmonious version of the accident. Yet, when given an opportunity to explain the dissonance, the 1st Respondent merely insisted that his version given in the Civil Suit, which was later in time, was the correct one.

43.  The second reason to impugn the finding on liability by the Trial Court is the variance between the evidence tendered by the 1st Respondent and his pleadings. ….

To support his root of his title, the 1st Defendant has produced receipts and  share Certificates  in the name of James Kamau Ndai  to be the original allotee of the suit property . However,  there is no link that has been produced in Court  between the said James Kamau Ndai and the  suit property as the ballot  produced does no  bear his name. Further, the name of James Kamau Ndai, is not in the alleged register produced as exhibit and further   how could the personal representative  have sold the suit property while the same was never part of the deceased’s property as per the grant produced in evidence. In carrying out the investigation as to the root of the 1st Defendant’s title, the Court  in not  satisfied that he has indeed satisfactorily shown the root of his title, as the chain that was to hold the link was broken. Save for the register,  bearing the name of John Gichuki Thairu,there is no evidence that the said John Gichuki Thairu, ever held the  suit property as the 1st Defendant  did not produce either a share certificate nor a receipt and for the reasons advanced by the Court above, the Court  cannot hold and find that the said John Gichuki Thairu, ever owned the suit property.

The Plaintiff, on the other hand in support of his case, produced a sale agreement showing that he bought the suit property from the 2nd Defendant. The 2nd Defendant in his evidence  testified that he  held shares in the  Company (Githunguri Constituency Ranching Company) and produced a Share Certificate and a receipt to show that  he had  acquired the same from the said Company . It was the 1st Defendant’s contention  that the documents acquired by the Plaintiff were acquired fraudulently. Further  the letter dated  19th November 2019, by the DW 3 from Company indicated that the  said documents were not genuine  as the  Receipt No. 377, did not indicate share certificate number to be transferred and neither did the ballot  number of the  plot . Further that share Certificate  No. 8127,  is not indicated on the  plot number and neither does it have the originating documents.

The Court has already noted that the said evidence by the Company is inconsistent and therefore this Court is not bound by the said inconsistent evidence and thus impugns the same. The Court has also gone through the receipts that do not have what has been alluded to. Further DW3 did not confirm that the receipt No.377 had indicated the  Share Certificate.

Fraud is a serious allegation that must be specifically pleaded and proved. In this Case, apart from allegations, there was nothing to prove that the 2nd Defendant fraudulently acquired the   receipts and the share Certificate herein.

The Plaintiff is the registered owner of the suit property and Section 26of the  Land Registration Act  mandates the Court to cancel the such certificate of title is there is prove that it was acquired fraudulently or unprocedurally. In this case, the Plaintiff has produced  a Sale agreement  evidencing that he  had bought the suit property from the 2nd Defendant who has also produced evidence that he acquired the same from Githunguri Constituency Ranching Company  Limited . Thus the Court is satisfied that the Plaintiff has been able to satisfactorily show the  root of his title. Should the Plaintiff have gone further and  produced the documents  the 2nd  Defendant  used to  gain registration absolutely?  It is the   1st Defendant who had pleaded fraud,  and therefore it was incumbent upon him to prove the  said fraud which in the Court’s considered view, he  failed to do so. It is trite that he who alleges must prove .

Further   the  parties are bound to  prove their case on the balance of probabilities and the same favours  the Plaintiff herein. See the case of .Palace Investment Ltd ….Vs… Geoffrey Kariuki Mwenda & Another (2015) eKLR, where the Court of Appeal held that;-

“Denning J. in Miller Vs Minister of Pensions (1947) 2 ALL ER 372 discussing the burden of proof had this to say;-

“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it more probable than not; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will loose, because the requisite standard will not have been attained.”

Further in the case ofWilliam Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526,  the Court stated that:

“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. Inpercentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”

The Court therefore finds and holds that the Plaintiff has satisfactorily  shown the root of his title.

2. Whether the Plaintiff is entitled to the orders sought in his Amended Plaint

In his Amended Plaint, the Plaintiff had sought for orders that he be declared the lawful registered proprietor of the suit property and for a permanent injunction. The Court has found and held that the Plaintiff was able to show the root of his title. Therefor, the Court  finds and holds that he is the lawful owner of the suit property. Being the registered owner, as per the provisions of Sections 24 and 25 of the Land Registration Ac, the  Plaintiff holds all the rights and privileges appertaining to the suit property and thus entitled to quiet and peaceful possession  and enjoyment of the same and that can only happen if an injunction is issued, The Court therefore finds the prayer for permanent injunction is merited.

The Plaintiff has also sought for Damages against the 1st  Defendant for trespass. Trespass has been defined by Clerk and Lindsel on Torts, 18th edition at Pg.23 as;

“any unjustifiable intrusion by one person upon the land inpossession.’’

As per the  evidence adduced, the  Court is satisfied that the 1st Defendant bought the suit property  and took possession. Though the Court  has found that the Plaintiff is  the owner of the suit property, given that the 1st  Defendant entered upon the land believing that he had genuinely bought the same, the Court does not find that there was unjustifiable intrusion, hence  the  Court finds the  prayer for damages not merited

3. Whether the 1st Defendant is entitled to the orders sought in his  Counter Claim

The 1st Defendant in his Counter claim had  sought for a Declaration that the Plaintiff’s registration is fraudulent and illegal and further for the cancellation of the same. Section 26(1) of the Land  Registration Act provides;

“26. Certificate of title to be held as conclusive evidence of proprietorship

(1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—

(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or

(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”

The 1st Defendant has been unable to prove that the Certificate of title held by the Plaintiff was either acquired fraudulentlyor illegally.Consequently, the Court finds and holds that the Orders sought by the 1st Defendant in his counterclaim are not merited and are thus dismissed.

4. Who should bear the  cost of the suit

Though Section 27 of the Civil procedure Act gives the Court the discretion  to grant costs, it is trite that costs usually follow the event and that  the Successful party is entitled to the costs of the suit unless   there are special circumstances. In this instance, the Court  finds and holds that  there is none and therefore the Plaintiff being the  Successful party is entitled to the costs of the suit.

The Upshot of the above, is that the Court finds that the Plaintiff has proved his case to the required standard of balance of probabilities and consequently, the Court enters judgment for the Plaintiff against the Defendants herein jointly and severally and more specifically the 1st and 3rd Defendants as prayed in the Amended Plaint dated 12th July 2019, in terms of prayers No. (a) (b) and (d).

Further the Court finds and holds that the 1st Defendant has failed to prove the claims in his Counterclaim dated 13th October 2015, on the required standard and the said Counterclaim is dismissed entirely with costs to the Plaintiff.

It is so ordered

DATED,SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 16TH DAY OF DECEMBER, 2021.

L. GACHERU

JUDGE

Delivered online

In the presence of;

Alex Mugo & Kuiyaki - Court Assistants

M/s Wanjiku H/B for Mr Gachie for the Plaintiff

Mr Warutere H/B Kanyi Kiruchi for the 1st & 2nd Defendants

N/A for the 3rd Defendant

N/A for the 4th Defendant

L. GACHERU

JUDGE